This Non-Disclosure and Non-Use Agreement (this “Agreement”) is effective as of this 02 day of April 2023 (the “Effective Date”), by and between _Zoom Communications, LLD DBA No More Salespeople___, an Arizona limited liability company (“Presenter”), and ______________________, a _______________ (“USER”). Presenter and User are sometimes each referred to as a “Party” and collectively as the “Parties”.
1. This Agreement is made in order for Presenter to share with User certain technical and business information related to exploring a potential business relationship between the Parties (the “Transaction”) under terms that will protect Presenter’s valuable business relationships and the confidential and proprietary nature of the information shared hereunder.
2. As used herein, “Confidential Information” shall mean any and all non-public, confidential or proprietary technical or business information, including third party information, disclosed or furnished, in whatever tangible form or medium, by or on behalf of Presenter to User and/or User’s affiliates’ officers, directors, employees, agents, advisors, counsel and auditors (collectively, “Representatives”), including, but not limited to, product/service specifications, prototypes, computer programs, models, drawings, marketing plans, financial data, and personnel statistics. The term “Confidential Information” further includes information regarding the existence or purpose of this Agreement, the terms or conditions hereof, or the fact that discussions are taking place and that Confidential Information is being shared. The obligations imposed by this Agreement shall not apply to any information that User is able to demonstrate: (a) is already in the possession of, is known to, or is independently developed by User; (b) is or becomes publicly available through no fault of Company or any Representative; (c) is obtained by User or any Representative from a third person not known to User or any Representative of User to be under an obligation of confidentiality; or (d) is required to be disclosed pursuant to the lawful order of a government agency or disclosure is required by operation of the law or other legal process provided, however, that Presenter is notified of such order or requirement and given a reasonable opportunity to intervene.
3. User will keep Confidential Information confidential, and will not use Confidential Information for any purpose other than to engage in discussions in contemplation of a Transaction, in accordance with the terms and conditions herein. User shall use at least the same degree of care (and in no event less than reasonable care) in protecting Confidential Information as User uses in regard to its own confidential information. User shall not remove any copyright, trade mark, service mark or other proprietary rights notice attached to or included in any Confidential Information. Upon the written request of Presenter (whether during the term of this Agreement or thereafter), all Confidential Information, together with any copies of same as may be authorized herein, shall, at Presenter’s option, be returned to Presenter or destroyed by User and its Representatives.
4. All Confidential Information is and shall remain the property of Presenter. By disclosing information to User, Presenter does not grant any express or implied right to User to or under Presenter’s patents, copyright, trademarks, or trade secret information. Presenter provides no representation or warranty as to completeness or accuracy of the Confidential Information for purposes of the Transaction or otherwise. User agrees never to allow any person, persons, representatives or entity of a competing service to gain access to the Property of the Presenter.
5. During the term of this Agreement and for 1 year thereafter:
6. Except as provided herein, no obligation of any kind is assumed or implied against either Party by virtue of the Party's meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information is exchanged. Each Party further acknowledges that this Agreement and any meetings and communications of the Parties relating to the same subject matter, including the exchange of Confidential Information, shall not: (a) constitute an offer, request, or contract with the other to engage in any research, development or other work; (b) constitute an offer, request or contract involving a buyer seller relationship, joint venture, teaming or partnership relationship between the Parties; or (c) subject to Section 5 herein, impair or restrict either Party's right to make, procure or market any products or services, now or in the future, which may be similar to or competitive with those offered by the disclosing Party, or which are the subject matter of this Agreement, so long as that Party's obligations under this Agreement are not breached. Any money, expenses or losses expended or incurred by each Party in preparation for, or as a result of this Agreement or the Parties' meetings and communications, is at each Party's sole cost and expense.
7. User will not disclose Confidential Information to any Representative unless such Representative needs to know such information in the course of fulfilling such Representative’s functions in relation to the Transaction. User is responsible for advising its Representatives of this Agreement and for any failure of its Representatives to abide by all of the terms and conditions herein.
8. Either Party may terminate this Agreement upon written notice to the other, provided that (a) all of the provisions of this Agreement in respect of Confidential Information shall survive any termination of this Agreement; and (b) Section 5 of this Agreement shall survive any termination of this Agreement as provided therein.
9. The Parties acknowledge that the restrictions in this Agreement are reasonable and necessary to protect the legitimate interests of the Parties and that any violation would result in irreparable injury to the non-breaching Party. The Parties further acknowledge that, in the event of a violation of any such restrictions, the non-breaching Party shall be entitled to preliminary and permanent injunctive relief without having to prove actual damages or immediate or irreparable harm or to post a bond.
10. User shall adhere to the U.S. Export Administration Laws and Regulations and shall not export or re-export any Confidential Information, technical data, or products received from Presenter, or any direct product of such Confidential Information or technical data, to any person or Person who is a legal resident of or is controlled by a legal resident of any proscribed country listed in Section 779.4(f) of the U.S. Export Administration Regulations (as the same may be amended from time to time), unless properly authorized by the U.S. Government. This requirement is not limited by the time period stated in this Agreement.
11. Neither this Agreement nor any rights hereunder in whole or in part shall be assignable or otherwise transferable by either Party without the prior written consent of the other Party, provided that Presenter may assign or transfer this Agreement and rights and obligations hereunder to any current or future successor if such successor agrees in writing to the terms and conditions herein.
12. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona without reference to the principles of conflict of laws. Except for actions seeking injunctive relief (which may be brought in any appropriate jurisdiction) suit under this Agreement shall only be brought in a court of competent jurisdiction in Phoenix, Arizona. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non-convenience or similar doctrine or to object to venue with respect to any proceeding.
13. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire Agreement between the Parties with respect to the subject matter of this Agreement. No provision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or modification is made in writing and signed by both Parties. This Agreement supersedes all previous agreements between the Parties relating to the subject matter hereof. This Agreement may be executed in counterparts, each of which shall be an original, but such counterparts shall together constitute one and the same document.
14. If for any reason whatsoever, any one or more of the provisions hereof shall be held or deemed to be illegal, inoperative, unenforceable or invalid as applied to any particular case or in all cases, such circumstances shall not have the effect of rendering such provision illegal, inoperative, unenforceable or invalid in any other case or of rendering any other provision hereof illegal, inoperative, unenforceable or invalid. Furthermore, in lieu of each such illegal, invalid, unenforceable or inoperative provision, there shall be added automatically a provision similar in terms of such illegal, invalid, unenforceable or inoperative provision as may be possible and as shall be legal, valid, enforceable and operative.
15. Any notice to be given hereunder by either Party to the other, shall be in writing and shall be deemed given (a) on the day of service if served personally on the Party to whom notice is to be given, (b) on the day after delivery to a commercially recognized overnight courier service, or (c) on the fifth day after mailing, if mailed to the Party to whom notice is to be given, by first class mail, registered or certified, postage prepaid and properly addressed (in the case of (b) or (c)), to the Party at the address listed below.